COURT OF APPEALS OF VIRGINIA
Present: Judges Chaf in, Russell and AtLee Argued at Richmond, Virginia

JOCELYN LEE GEOUGE v. Record No. 0559-17-2 JASON BARRY TRAYLOR, DUSTIN GRIFFITH AND TIFFANY VADE LLA-GRIFFITH OPINION BY JOCELYN LEE GEOUGE J UDGE WESLEY G. RUSSELL, JR. DECEMBER 27, 2017 v. Record No. 0737-17-2 JASON BARRY TRAYLOR, DUSTIN GRIFFITH AND TIFFANY VADE LLA-GRIFFITH

FROM THE CIRCUIT COURT OF POWHATAN COUNTY Paul W. Cella, Judge Anne L. Roddy (FloranceGordonBrown, on brief), for appellant. Colleen M. Quinn (Kati K. Dean; Rick Friedman; M. Brooke Teef ey, Guardian ad litem for the minor child; Locke & Quinn, PLC; Friedman Law Firm, P.C., on brief), for appellees.

In this consolidated appeal, Joc elyn Lee Geouge, biological mo ther of L.T., challenges two orders of the Powhatan County Cir cuit Court relating to the pla cement of L.T. by the child’s biological father, Jason Traylo r, with Dustin and Tiffany Griff ith (“appellees”) 1 for their adoption of L.T. Geouge contends the first order erred in ruling, among other things, that t he Indian Child Welfare Act (“ICWA” or “the Ac t”) did not apply to the proceedi ngs, that Geouge withheld her consent to the placement and adop tion of L.T. contrary to the c hild’s best interest s, and that legal

1 The biological father, Traylor, also is an “appellee” in this case; however, for purposes of this opinion, we limit the use of the term “appellees” to re fer only to the adoptive parents unless context dictates otherwise.PUBLISHED- 2 - and physical custody of L.T. would be granted to appellees. Ge ouge further appeal s the subsequent final order of adoption grantin g appellees’ petiti on for adopti on of L.T. For the r easons that follow, we affirm.
BACKGROUND Because the circuit court heard evidence ore tenus , its factual findings a re “entitled to the same weight accorded a jury verdict[] and . . . will not be dis turbed on appeal unless plainly wrong or without evidence to suppor t” them. Bristol Dep’t of S oc. Servs. v. Welch, 64 Va. App. 34, 44, 764 S.E.2d 284, 289 (2014) (internal quotation marks an d citation omitted). Moreover, we review the facts in the light most favorable to appellees, g ranting them all reasonable inferences that can be drawn from the evidence, because they we re the prevailing parties below. See Farley v. Farley, 9 Va. App. 326, 328, 387 S .E.2d 794, 795 (1990). Thus, we must disregard any evidence that conflicts with appellees’ evidence. See Gars t v. Obenchain, 196 Va. 664, 668, 85 S.E.2d 207, 210 (1955). So viewed, the evidence establ ishes that Geouge is the biologi cal mother of L.T., the child who is the subject of this app eal, and four older children, thr ee of whom she shares with Traylor. Geouge was convicted of prescri ption fraud in late 2013, result ing in a three-year suspended sentence. In March 2014, Geouge again was convicted of prescri ption fraud. Geouge was sentenced to five years incarceration in the Department of Corr ections, with all five years suspended for ten years, conditi oned on good behavio r. Geouge subsequent ly was convicted of breaking and entering, several counts of larc eny, and illegal possession of drugs, and in February 2015, was sentenced to a total of ten years and sixty months, but the sen tencing court suspended all but one year and three months and granted credit for time served. On F ebruary 18, 2015, the corrections medical unit informed G eouge was pregnant.- 3 - After her release, in June 2015 , Geouge was convi cted of obtai ning drugs using a false name and identify theft to defraud. Th e court imposed a prison sent ence, but suspended all but six months of that sentence. Based on these convictions, in June 2015, Geouge was found to be in violation of the terms of her suspended sentences. The sentencing court imposed porti ons of the suspended sentences associated with her prior convictions, but resuspended all but six months of the sentences. In light of her high-risk pregnancy, Geo uge was placed on house arrest i n July 2015, but she failed a drug screen in September and was rein carcerated, with a release date set for late January 2017. On October 17, 2015, while servi ng her sentence, Geouge gave b irth to L.T. Although the Fluvanna Department of Social Services (“DSS” or “the Departmen t”) had tried to work with Geouge to find an approp riate placement prior to L.T.’s birth, when L.T. was discharged from the hospital on October 20, 2015, s he had no placement. As a resul t, L.T. was temporarily entrusted to the Department, who then placed her in a foster home. On Octob er 23, 2015, Traylor informed the Department t hat he was willing to take the child and raise her with her brothers; he relayed plans that he had made, including his purchases of infant supplies. Because Traylor lived in Powhatan County, the case was transferred to its DSS. Powhatan DSS perf ormed a backgrou nd check, and, on October 28, 2015, L. T. was released to Traylor. The same da y, Traylor unilaterally transferred physical custody of L.T. to appellees. On October 29, 2015, Powhatan DS S conducted a family partnersh ip meeting to assist the family in identifying needs and s ervices. Traylor was present, and Geouge participated via telephone. Geouge’s aunt and gr andmother and so cial workers fr om Powhatan and Fluvanna DSS and the Department of Corrections also participated. Geouge’s addiction to pain medications was discussed. Despite appellees alr eady having phys ical custody o f L.T., Traylor represented that the prior night with L.T. had gone well and noted t he availability of his family support system going- 4 - forward. An action plan was adopt ed by which L.T. was to remai n with Traylor, who was to remain in contact with Geouge, and visitation with Geouge was to be co nsidered once L.T. had been issued a social security number. On November 2, 2 015, Powhatan DSS perfor med a follow-up visit at Traylor’s home to ascertain what services , if any, he might n eed. L.T. was not at the home; Traylor indicated that she was temporarily at a friend’s hou se to allow him to sort out is sues with the other children before she returned to the home. Traylor declined any services. Later in November 2015, Traylor, joined by appellees, filed in the Powhatan County Juvenile and Domestic R elations District Co urt (“JDR court”) a “Petition to Accep t Consent for Adoption and Transfer Custody” whe reby he requested the court t o accept his consent for adoption, “accept the consent of [ birth mother] or othe rwise address her parental rights[,] and transfer custody of [L.T.] to the [adoptive parent s, appellees,] to be responsib le for the care of t he child until such time as . . . the Final Order of Adoption is entered.” On December 4, 2 015, Geouge, pro se , filed a petition in the JDR court requesting that custody of L.T. be transferred to Geouge’s mother or cousin. S he further petitione d the court for visitation with her c hild. On the petitions , Geouge noted L.T. ’s race as “Cau casian/Native American.” L.T.’s mat ernal grandmother al so filed a petition f or visitation. Because Geouge was incarcerated, a guardian ad litem was appointed to represent her. 2 A separate guardian was appointed to represent L.T.’s interests. On January 27, 2016, the JDR court heard G eouge’s petition for legal custody and visitation of L.T. Geouge sought weekly vi sitation to occur at the prison . By order dated March 9, 2016, the JDR court denied the petition. This order was not appealed.

2 After Geouge was release d from prison, the guardian ad litem ceased being her guardian, but continued to repre sent her as her counsel.- 5 - On March 18, 2016, appellees f iled in the JDR c ourt a petition for custody and visitation of L.T. On May 16, 2016, Geouge filed a mo tion to dismiss appelle es’ petition for custody, asserting that appellees lacked standi ng and already had custody. The JDR court conducted a hearin g on June 1, 20 16, and entered its order on July 6, 2016. The JDR court denied Geouge’s mo tion to dismiss, found that the ICWA and the Servicemembers Civil Relief Act did not apply, 3 and accepted Traylor’s consent. The JDR court further found t hat Geouge was objecting to the adopt ion contrary to L.T.’s best interests and waived the requirement that she consent. The court awarded custody of the child to ap pellees, “pursuant to their [p]etitions filed under Virginia Code [§] 63.2-1230, et seq.” On July 13, 2016, Geouge appeal ed the JDR court’s ruling to th e circuit court for a trial de

novo . Trial was set for December 1 5, 2016, but by motion filed Sep tember 27, 2016, Geouge sought to continue the matter until after her release from pris on in January, “so t hat she may fully participate in her opposition to the petition.” Appellees obje cted to a continuanc e, and a hearing on the motion was held on November 8, 2016. G eouge enumerated sev eral ways in which her life circumstances would be changed u pon her release f rom incarcerat ion, including procurement of a driver’s license, securing of hous ing, access to assets, and gr eater ability to find employment. In denying the motion, the court no ted from the bench that Geouge “can present evidence of what her plan is when she gets out, and I can hear that and make a decis ion based on that. . . . I don’t think this case can be dragged on inde finitely to see how [Geouge] do es.” By order dat ed the same day, the circuit court denied Geoug e’s motion to continue. On Decem ber 6, 2016, Geouge filed another motion to continue bas ed on appellees’ alle ged failure to compl y with discovery rules; the motion was withdrawn upon the parties re aching an agreeme nt on the dis covery issues.

3 It does not appear that the part ies raised either the ICWA or the Servicemembers Civil Release Act in the JDR court; ra ther, the findings of inapplica bility appear to be part of the JDR court’s standard order.- 6 - On December 12, 2016 , Geouge filed a motio n to stay the procee dings, claiming that Geouge’s father was of Native American descent. She asserted t hat a stay was needed “to ensure compliance with the [Indian Chil d Welfare Act], if it applies” to allow for “sufficient time for appropriate Notice to the Tribes, as well as sufficient time fo r mother to investigate her ancestry to determine [her] status.” Ap pellees opposed the stay. The matter proceeded to trial i n the circuit court on December 15, 2016. At the outset of trial, Geouge raised the issue o f the potential application of ICWA, asserting that Geouge’s father was “known by the family to be of Cherokee descent,” but makingno representation that either he or Geouge were members of a federally recognized Cherokee tribe . Dorothy Wilkins, who had shared a home with Geouge’s fathe r when they were growing up, l ater testified that the family believed that he was of Native Am erican descent. Geouge’s aunt , her father’s sister, also testified that she understood fro m her parents that t hey were of Cherokee descent. Without objection, appellees provided the court with a copy of the Federal Registe r listing the three federally recognized Cherokee tribes and inf ormation regarding the requir ements for membership in those tribes. The child’s guardian ad litem concurred with Geouge’s request for a continuance/stay, citing the potential for an overturning of the adoption in the future should a tribe determine the child is a member. In denying the stay, the circuit court determined that under I CWA, “the child must be a member of a federally recognize d tribe, or the child must be el igible for membe rship and be the child of a member.” The court th en found that Geouge had “conc eded that those requirements have not been met, because there’s not proof that the child is a mem ber or that the mother is a member.” The court noted that “[i]t’s just some vague assertion that the re might be some Indian ancestry” and stated that “the burden of proof is on [Geouge] to show that IC WA does apply.”- 7 - After denying the stay, the court proceeded to address whether Geouge was wi thholding her consent to the adoption contrary t o the best interests of L.T. The parties present ed evidence over two days. Appellee Mrs. Griffith testifie d that she became aware of L.T. through her pastor. She noted that L.T. was eleven days old wh en she and her husband assumed custody of her, but that Traylor did not formally consent to the adoption until seven to ten day s later. She denied making any payments to Traylor. She stated Geouge first attempted to callappellees in December 2015, but they were out of town . Geouge next reached out in January 2016 , and again in April 2016, having about a twenty-minute phone conversation each time. Mrs. Griff ith also testified regarding written correspondence, including her sen ding Geouge phot ographs of L.T . in March 2016. More pictures and an update were sen t in November just after L.T.’s first bir thday. With respect to bringing L.T. to the correctional fa cility to visit Geouge , Mrs. Griffith ass erted her belief that the JDR court order denying Geouge’s visitation pe tition prohibite d such visitation

. Mrs. Griffith testified about taking L.T. to regular doctors’ appointments and commented that the child is “a very happy and healthy baby.” She further described their usual activities, including playing cook, reading , taking walks, and occasional p lay dates. She also commented on the efforts she had made to allow interaction with Geouge’s mot her and to foster a continuing relationship between L.T., Traylo r, and L.T.’s brothers. Citin g consideration of the best interests of L.T., she neither agr eed to nor ruled out potential interaction between L.T. and Ge ouge in the future. Traylor testified that he began his relationship with Geouge i n 2006 and had custody of three sons that he shares with Geouge. He stated that he initi ally had planned on pa renting L.T., but realized he would not be capable when also raising the other ch ildren. He noted behavioral issues with them, e specially the eldest who had been admitted to a psy chiatric facility.- 8 - Traylor lived with Geouge until she was incarcer ated. He test ified to observing fentanyl patches, empty pill capsules, an d liquor at the residence. He commented on the condition of Geouge’s mother’s house when the y resided there, noting that it had rotted wood, missing bricks, and mold. He acknowledged that he could not say whether there had been impro vements made after he moved out. Traylor described incidents of rage by Geouge, in which she ye lled, swore, spat, and threw things, even when child ren were present. He stated that she on ce hit him in the back of his head with a skateboard and that “she did come after me with a knife on a few occasions.” Traylor also asserted that Geouge inappropria tely consumed cough syrup and h ad pawned some of the children’s toys. Jeremiah Geouge, Geouge’s ex-hus band, also testified. They ma rried in 1998 and separated five to six years later. They d ivorced in 2014 while Geouge wa s incarcerated. Together they had a son, born March 27, 20 01, who is autistic. Geouge had custody of the son until July 2014 when custody was transferred to the ex- husband. Geouge was awarded visitation. According to the ex-husband, Geouge attempted t o maintain regular communication with their son. The ex-husband testified that, minus some viol ent episodes, he thought Geouge was a good parent. Appellees called several witnesses to testify to their observa tions of Geouge’s drug use and parenting. Katie Bredemeier, a friend through Ge ouge’s ex-husb and, testified to Geouge’s attempt to use her name to procure oxycod one and Geouge’s unlawful acqu isition of her dau ghter’s drugs. Bredemeier testified that prior to her drug problem, which bega n in 2013-14, Ge ouge took good care of her sons. Bredemeier sa id she had been approached about taking care of L.T., but was only interested if it would l ead to full adoption. Lori Guthrie, who had known G eouge for sixteen years, acknowle dged that she had given Geouge prescription drugs in the past. She relayed an incident regarding a neighbor whose- 9 - daughter’s medications went missi ng after Geouge had used the b athroom. Guthrie had been asked to take L.T., but could not du e to her own family issues. Traylor’s mother, Teresa Traylo r, recounted calling the police when Geouge used her name to get prescription drugs from a dentist. She stated that Geou ge started as a good mother, but then “things started happening.” As the paternal grandmother, she a ssumed a lot of financial responsibility regardi ng the three boys. S he comment ed that Ge ouge was “not a good parent for these children.” Geouge called numerous witnesse s to opine on her positive qual ities as a parent. The witnesses included relatives and others in the community. They testified regarding their impressions of her relationships with her other children, her a ttempts at reforming her troublesome behaviors, and their abilities to serve as a support system for Geouge and her ch ildren upon her release from prison. Geouge also called multiple offi cials from the prison to testi fy. They testified that Geouge was behaving appropriately in prison, seemed eager to correct h er past mistakes, expressed her desire to reunite with L.T., was working towards sobriety, and recognized that her actions had led to her current family situation. Th ey testified that Geouge sought out classes, including a parenting class, designed to ease her trans ition after her release from p rison. Geouge testified regarding her d rug addiction. She said she b ecame addicted to pain medication after a series of bac k surgeries beginning in 2011. She denied using any substances while pregnant with any of her children and contested the alleg ations made during Traylor’s testimony regarding same. She d escribed the programs she was p articipating in and detailed what actions she would take upon releas e, including checking in with her probation officer, continued substance abuse treatment programs, and further payment of her fines and costs. She explained what repairs had been and would be made to the house in which s he and the children would live.- 10 - She articulated how she anticip ated the transition for L.T. wou ld proceed, allowing the child to remain with appellees with gradu ally more time w ith Geouge, pos sibly over the course of a year. Geouge acknowledged she had not seen her child since three days after she had been born. On cross-examination, she was ques tioned regarding outstanding med ical bills, of which she had no knowledge, and her potential futu re employment for which she ha d not yet applied. Dr. William F. Whelan, a clinical psychologist, testified as a n expert in attachment issues. He described his methodology and explained the importance to a child of strong, healthy parental attachment. He observed L.T. wi th appellees in April and in Oc tober of 2016. He testified that L.T.’s attachment with appellees was secure and healthy and that there were no high risk or odd behaviors or developmental problems. He specifically opined th at [L.T.’s] interactions in October when we saw them are secure wi th each [foster] parent, meaning tha t she does organize herself ar ound them, she automatica lly makes good use of their help both for exploration and for soothing her distress and her emotions. Sh e automatically gravitates toward t hem, seeks proximity, maintain s contact with them during times of stress. And these are all th ings that are hallmarks of security in the first year of life. With respect to appellees, he commented, Their caregiving patterns . . . were sensitive to her emotional and behavioral needs, and secure. They were able to scaffold her behavior and exploration in the p lay room, and during times of distress they did a very nice jo b in approaching and soothing h er, and she responded well to that. So t here was a large degree of aut omatic, moment-to-moment synchronicity in their behaviors and also reciprocity, and those things are also hallmarks of security. Dr. Whelan also testified to th e potential effects of a change in custody. He stated: If [L.T.] were to lose her current foster parents, that would a lmost certainly be a huge loss to her a nd a huge injury, emotional in jury. One of the reasons being is that the relationship is a very phy sical thing . . . her body, her neurology is us ed to having them arou nd, knows how to interact with them, and she’s organized herself ar ound those people. So if she loses t hem she’s going to sustain a ve ry significant emotional loss and injury.- 11 - He noted that, as a result of such a separation, a child may su ffer physical symptoms as well, including vomiting or sleep loss, and, if under protracted dist ress, loss of concentration and behavioral issues. Although he testified that it wa s his opinion that L.T. was fu lly attached to appellees, Dr. Whelan conceded that it is possible for a ch ild, after suff ering a traumatic loss of attachment, to develop healthy, secure attachment s with other caregivers. The new caregiver, however, would need to be a person who is emotionally health y and has good abilitie s in self-reflectio n, able to think about what’s going on insid e [L.T.], able to think about what she needs, able to think about her own emotional states and be able to regulate herself well. [The n ew caregiver would need to be a] person who has a history of success in close emotional relation ships, somebody that knows how to r epair ups and downs . . . . Dr. Whelan had not m et with Geouge or assessed her caregiving a bilities, but opined that a history of addiction or inabi lity to regulate intern al behavior s would raise concerns. Rev. Walter Lewis, the priest at the church where appellees ha ve been parishioners for over five years, and Mary Harrison, a fellow parishioner, reported t he positive interactions between L.T. and appellees that they had observed. After the close of all the evidence, the parties made extensiv e closing arguments relating to their views as to the best interests of L.T. Once argument was concluded, the court commented that “this is a difficult case in sev eral respects,” “somebody is go ing to be hurt bad no matter what I do,” and “this child is going to have a hard time because of the his tory no matter what.” The court continued, “the questio n is under Code § 63 .2-1205 whether the valid consent of the mother is being withheld contrary to the best interest of the child in light of the factors outlined in that Code section.” The court then addressed the statutory factors. With respect to the first factor, Geouge’s efforts to obtain o r maintain legal and physical custody, the court stated, “[Ge ouge] kind of sabotaged her own efforts by gettingherself back into- 12 - prison when she was on house arre st. . . . That was her fault. ” The court noted t hat “she has made some efforts to maintain custody since she got back into prison , understanding the difficulties inherent in that, but she put herself in [that] position.” Regarding the second factor, th e parent’s willi ngness and abil ity to assume full custody, the court acknowledged Geouge’s clea r willingness, but questioned n ot only her ability while incarcerated, but also after rel ease. The court stated, “we’re left to conjecture as to what might happen in the future . . . [w]e’ve got a history of incarcerati on and drug addiction and criminal activity which I have to weigh and the future is an unknown.” As to the third factor, the cour t commented: “The thwarting b y [father] troubles me a great deal and I think that is a factor in the mother’s favor. I thi nk the fact that he just gave the child away and essentially thought that he c ould do whatever he wanted to when she was in jail bothers me.” The court made no comments regarding any thwarting on the part of appellees. The court continued: The next factor is the birth parents’ ab ility to care for the child, and I think that is an[] unknown at this point, and I do n’t think it’s been proved she has the ab ility at the moment. The age of the child is 14 months as ha s been pointed out. The next factor is the quality of any previous relationship between the mother and the child and between the mother and any other children. She has essentially zero relationship with thi s child. And . . . the relationship with the other children is unsatisfa ctory at the moment . . . . The court then considered the duration and su itability of L.T.’ s present custodial environment, noting that everyone seemed to agree that it was “excellent.” Finally, the court addressed the effect of a change in physica l custody. In co nsidering this factor, the court gave significant weight to th e testimony of D r. Whelan. The court summarized the evidence as follows:- 13 - He testified that there is a wou nd or an injury that is created . In my notes he said a, quote, “huge lo ss” closed quote, and, quote, “emotional injury,” closed quote, and that they could heal depe nding on the qualities of the new caretaker, and unf ortunately the mo ther fits the qualities he outlined as being unsatisfactory to be a caretaker. After reviewing all of the fact ors in light of the evidence pr esented, the court stated its ruling from the bench on December 16, 20 16. The court determined that Geouge was withholding her consent contrary to the best interests of the child and that th e adoption should go forward. No order memorializing the ruling was entered for several months. On March 9, 2017, Geouge filed a motion asking the circuit cou rt to reconsider its December 16, 2016 ru ling. In support of he r motion, she assert ed, among other things, that she was no longer incarcerated, had paid all outstanding court fines an d costs, had inherited substantial sums, and had use of a car. Geouge also con tended that the cir cuit court had not correctly applied the ICWA. On March 10, 2017, the court issued a letter opinion detailing its reasons for denying the motion to reconsider and entered its final order memorializing its rulings. The order expressly denied Geouge’s motion to stay, holding that the ICWA did not a pply; denied the motion to continue; accepted Traylor’s conse nt pursuant to C ode § 63.2-12 33; waived Geoug e’s consent, finding that she withheld it cont rary to L.T.’s best interests; and granted appellees legal and physical custody of the child. Geouge f iled her notice of appeal of thi s order with the circuit court on April 7, 2017. Appellees filed a petition for adoption of L.T. on March 20, 2 017. Attached to the petition were Traylor’s attested consent to adoption, home study reports , and the March 10, 2017 circuit court order waiving the requirement of Geouge’s consent. The s ame day, based on t he petition, the court entered an interlocutory order, by which the birth parent s’ parental rights were terminated. The order noted that father had consented to the adoption, that Geouge’s consent had been withheld- 14 - contrary to the best interests of the child, and that the best interests of the child would be promoted by her adoption. Upon receipt and review of a post-placement h ome visit report, the circuit court granted appellees’ petition, finding that “all requirements of the applicable statutes have been complied with[.]” By order date d April 14, 2017, L.T. was decr eed to be the child of appellees, her name was changed, and Traylor was awarded visitation. On May 10, 2017, twenty-five da ys after entry of the adoption order, Geouge filed her objections to the order with the court. In addition to reiterating her objections t o the March 10, 2017 order, Geouge asserted the court erred in awarding the adoption without her being served with or receiving notice of the petition and in entering the order whil e the consent issue addressed in the March 10, 2017 order was on app eal to this Court. Geouge noted her appeal of the April 14, 2017 order to this Court the same day. With respect to the December 16 , 2016 order specifically, Geou ge presents the following assignments of error: 1. The [t]rial [c]ourt erred in failing to establish jurisdict ion, and in failing to determine that [a]ppellees had complied with the Ind ian Child Welfare Act, when there was reason to believe that the mi nor child was an Indian Child. 2. The [t]rial [c]ourt erred in determining that [Geouge] was withholding consent t o the adoption of her daughter L.T. contra ry to the best interests of her child. The [t]rial [c]ourt erred in failing to consider the evidence pursuant to Virginia Code S ection 63.2-12 05. 3. The [t]rial [c]ourt erred in failing to consider the action s of the [a]ppellees in withholding L.T. a nd thwarting a relationship wi th [Geouge], pursuant to Virginia Code Section 63.2-1205, and abus ed its discretion in failing to give such evidence sufficient weig ht in consideration of factor three of V irginia Code Section 63.2-120 5. 4. The [t]rial [c]ourt erred in determining that a visitation order between [Geouge and father] was a binding order prohibiting act ions of the prospective Appellees. 5. The [t]rial [c]ourt erred by failing to grant [Geouge’s] Mo tion to Continue the Trial of December 2016 out to a time certain after- 15 - Geouge’s release from prison, Jan uary 2017, and compounded such abuse of discretion by failing to grant Geouge’s Motion to Reconsider in March of 2017. Geouge raises the following as an additional assignment of err or regarding the April 14, 2017 order of adoption: The Trial Court erred in gran ting the Adoption Petition without consideration of the factors in V irginia Code Section 63.2-1205 , and in failing to provide No tice of Petition for A doption to [Geouge], or inquire as to counsel representation prior to ruling on the Adoption Petit ion, as required in Virginia Code Section 63.2-1203.
ANALYSIS I. Applicability of the Indian Child Welfare Act In 1978, Congress enacted the Indian Child Welfare Act, 25 U.S .C. § 1901 et seq ., to address what it determined was acrisis in which “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of th eir children from them by nontribal public and private age ncies and that an alarmingly hi gh percentage of such children are placed in non-Indian foster and adoptive homes and institutions .” 25 U.S.C. § 1901(4). Pursuant to the Act, it is the po licy of the United States to protect the best int erests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their fam ilies and the placement of such children in foster or adoptive homes which will reflect the uni que values of Indian culture, and by pr oviding for assistance to In dian tribes in the operation of chil d and family service programs. 25 U.S.C. § 1902. To further this policy, the Act “establishes a number of proce dural protections for cases involving Indian children.” T hompson v. Fairfax Cty. Dep’t of Family Servs., 62 Va. App. 350, 363, 747 S.E.2d 838, 845 (2013). Among these protections, the Act provides that “the parent or custodian of the Indian child, as well as the tri be, are entitl ed to notice by registered mail with- 16 - return receipt requested of ‘any involuntary proceeding in a St ate court, where the court knows or has reason to know that an Ind ian child is involved.’” Id. (quoting 25 U.S.C. § 1912(a)). Failure of a state court to ensur e that the Act’s protections are implemented subjects any action taken by the state court, inclu ding an order of adoption, to po tential invalidation in a subsequent proceeding. 25 U.S.C. § 1914. Having Native American ancestry alone, however, does not make one an “Indian child” for purposes of the Act. Rather , the Act specifically defines an “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child o f a member of an Indian tribe.” 25 U.S.C. § 1903(4). Moreover, the Act is limited to those Ind ian tribes that are federally recognized. 25 U.S.C. § 1903(3) & ( 8); see also In re C.H., 79 P.3d 822, 826 (Mont. 2003). The ultimate determination of whether a child is a member of a reco gnized tribe or is eligible for membership in a recognized tribe i s “solely within the jurisdic tion and authority of the Tribe, except as otherwise provide d by Federal or Tribal law . . . [an d a] State court may not substitute its own determination regarding” these membership questions. 2 5 C.F.R. § 23.108(b). 4

4 For the majority of the Act’s existence, there have been no fe deral regulations regarding how it should be implemented. Ins tead, “[t]he Bureau of IndianAffairs . . . published guidelines for interpreting and applying [th e Act], with accompanying comm entary, in the Federal Register. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584-95 (Nov. 26, 1979).” Thompson, 62 Va. App. at 365, 747 S.E.2d at 846. “The guidelines [were] ‘not published as regulations because t hey [were] not intended to ha ve binding legislative effect.’” Id. (quoting 44 Fed. Reg. 67,584). During the pendency of the proceed ings below, a final legislati ve rule that had been subject to notice and comment b ecame effective. See 25 C.F.R. Part 23. Coincidentally, the final rule became effective on December 12, 2016, the same day that Geouge filed her motion to stay proceedings because the Act might apply in the circuit cou rt. Unlike the previously utilized guidelines, the new rule and the r egulations it contains are en titled to the force of law. Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015) (“Rules issu ed through the notice-and-comment process are often referred to as ‘legislativ e rules’ because they have the ‘force and effect of law.’” (citation omitted)).- 17 - Although there is no dispute that t he termination of parental rights and subsequent adoption ultimately at issue in this case is the type of involuntary proceeding addressed by the Act, see 25 U.S.C. § 1903(1), there is a dispute as to whether the Act applies to this case. Specifically, Geouge argues that t he assertion in her motion to stay proceedings that the Act “might apply” was sufficient t o invoke the protections of the A ct’s notice provisions and required appellees to provide the relevant notices pursuant to 25 U.S.C. § 1912(a). 5 Appellees counter that Geouge, as the party invoking the Act, had the bur den to demonstrate the Act’s applicability, and thus, was requi red to prove that L.T. was an“Indian child” as defined in the Act before any portion of the Act would become operative. As courts around the country ha ve found, whether the Act appli es to a given case presents a question of law. See, e.g., State v. Reich-Crabtree (In re M .H.C.), 381 P.3d 710, 712 (Okla. 2016); In re Adoption of T.A.W., 383 P.3d 492, 497 (Wash. 2016) ; Cherino v. Cherino, 176 P.3d 1184, 1185 (N.M. Ct. App. 2008). Accordingly, we review de novo the circuit court’s decision that the Act does not apply. S ee Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96,

5 25 U.S.C. § 1912(a) provides that, in an adoption proceeding s ubject to the Act, the party seeking the [adoption o f] an Indian child shall notif y the parent or Indian custodian a nd the Indian child’s tribe, by registered mail with return r eceipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian c ustodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen da ys after recei pt to provide th e requisite notice to the parent or Indian custodian and the trib e. No foster care placement or termination of parental rights proceed ing shall be held until at least ten da ys after receipt of notice b y the parent or Indian custodian a nd the tribe or the Secretary: Provided , That the parent or Indian cust odian or the tr ibe shall, upon re quest, be granted up to twenty additiona l days to prepare for such proceeding.- 18 - 104, 639 S.E.2d 174, 178 (2007); Farrell v. Warren Cty. Dep’t o f Soc. Servs., 59 Va. App. 375, 406, 719 S.E.2d 329, 344 (2012). In general, a party invoking the protections of a statute bear s the burden of demonstrating that the statute is applicable . Multiple courts addressing the Act have concluded that the party invoking it bears the burden to demo nstrate that the case impli cates the Act. See, e.g., In re Trever I., 973 A.2d 752, 759 (Me. 2009) ; People v. Diane N. (inRe C.N.), 752 N.E.2d 1030, 1044 (Ill. 2001); In re A.S., 614 N.W.2d 383, 385-86 (S.D. 2000 ); In re Interest of J.L.M., 451 N.W.2d 377, 387 (Neb. 1990). We agree with appellees that, ult imately, the party invoking the Act bears the burden of estab lishing that the Act applies. 6 Despite this agreement, we di sagree with their assertion that the invoking party must “prove” that the child is an “ Indian child” before any provisio ns of the Act are implicated. From the Act’s express terms, it is clear that the Act’s notice prov isions are implicated long before a state court has determined conc lusively that a child falls with in the Act’s definition of an “Indian child.”

6 We note that, pursuant to the r ecently adopted regulations, th e Act imposes a duty on state courts to inquire as to whe ther the Act applies. Specifi cally, 25 C.F.R. § 23.107(a) requires that a state court ask each participant in a[] . . . c hild-custody proceeding whet her the participant knows or has r eason to know that the child is an Indian child. The inquiry is ma de at the commencement of the proceeding and all responses should be on the record. State co urts must instruct the parties to inf orm the court if they subsequen tly receive information that provi des reason to know the child is a n Indian child. As noted above, the regulation di d not become effective until a fter the circuit court proceedings already had commenced. Given that the issue first was raised b y Geouge on the day the regulations became effective and the circuit court’s considerat ion and ultimate disposition of the issue, we conclude that the circ uit court sufficiently satisfie d any obligations it had under 25 C.F.R. § 23.107(a).- 19 - The Act’s notice provisions are triggered when a state court “ knows or has reason to know that an Indian child i s involved.” 25 U.S.C. § 1912(a). If, for the notice provisions to become operative a party had to prove that a child was an “Indian chi ld,” the statutory language would provide only that notice is ne cessary when the state cour t “knows that an Indian child is involved.” The inclusion of t he less certain “reason to know” in addition to the more definitive “knows” is a clear indication tha t Congress intended the notice provisions to be effective in situations where there was sti ll question as to whether the chi ld is an Indian child. This view finds additional support from 25 U.S.C. § 1912(a)’s provisions regarding providing notice to the Secretar y of the Interior. Among other instances, notice must be given to the Secretary of the Interior whe n “the identity [of the] tribe cannot be determined.” Given that the Act limits the definition of “ Indian child” to those who ar e members of or eligible for membership in federally recognized tribes, 25 U.S.C. § 1903(3), (4) & (8), it is impossible to prove that a child meets the stat utory definition of “Indian ch ild” without knowing the identity of the tribe. Accordingly, the notic e provisions of the Act clear ly are operative in situations where the party invoking the Act has not yet proven that the child is an “Indian child.” The recently adopted regulations implementing the Act also mak e clear that the “reason to know” standard requires less th an actual proof that the chil d meets the statutory definition of “Indian child.” The regulations expressly recognize that state courts will be faced with situations in which “there is reason to know the child is an Indian child, but the court does not have sufficient evidence to determine that the child is or is not an ‘Indian child.’” 25 C.F.R. § 23.107(b). In such a situation, the state court mu st, among other things, “[t]reat the child as an Indian child, unless and until it is determined on the record that the child does not meet the definition of an ‘Indianchild’ in this part.” 25 C.F .R. § 23.107(b)(2).- 20 - Thus, Geouge was not required to prove that L.T. was an “Indian child” for the Act’s notice provisions to become operative. As the Supreme Court of Michigan has observed, “the ‘reason to know’ standard for pur poses of the no tice requiremen t in 25 U.S.C. 1912(a) . . . set[s] a rather low bar.” In re Morris, 815 N.W.2d 62, 73 (Mic h. 2012). Of course, our recognition that Geouge was faced with a low ba r does not mean that she cleared it. In the proceedings be low, Geouge never alleged tha t L.T. is an “Indian child”; rather, she only alleged that L.T. might be an Indian child. At oral argum ent in this Court, Geouge wa s asked if, in the time since she first raised the Act in the cir cuit court, she had found anything to support the position that L.T. was, in fact, an “Indian child.” With credible candor, Geouge conceded that she remained unable to assert in good faith anyth ing more than the Act “might apply.” Thus, we are faced with the questio n of whether that mere asse rtion, that the Act might apply, coupled with the other facts in the record, was sufficie nt to give the circuit court “reason to know” that L.T. is an “Indian c hild” subject to the Act’s pr otections. Based on the record and the recently enacted regulations , we conclude that it is not. Prior to the enactment of the r egulations, courts were divided on what is required to satisfy the “reason to know” standard. While some held that a bald assertion was sufficient, others required something more . Compare In re Antoinette S., 1 29 Cal. Rptr. 2d 15, 20-21 (Cal. Ct. App. 2002); In re Dependency of T.L.G., 108 P.3d 156, 162 (Wash. Ct. App. 2005); In re J.T., 693 A.2d 283, 288-89 (Vt. 1997) , with Illinois v. Amos (In re T.A.), 883 N.E.2d 639, 647 (Ill. App. Ct. 2008); A.J. v. Utah (Utah ex rel. M.J.), 266 P.3 d 850, 856-58 (Ut. Ct. App. 2011); In re C.C., 932 N.E.2d 360, 363 (Ohio Ct. App. 2010). The regulations were adopted, i n part, to address such “dispara te applications of [the Act] based on where the Indian child r esides” and to make certain th at the “uniform minimum Federal- 21 - standards intended by Congress” wer e applied in state courts. 81 Fed. Reg. 38,778. Accordingly, the reg ulations provide that [a] court . . . has reason to know that a child . . . is an Ind ian child if: (1) Any participant in the pr oceeding, officer of the court involved in the proceeding, Indian Tribe , Indian organization, or agency informs the court that the child is an Indian child; (2) Any participant in the pr oceeding, officer of the court involved in the proceeding, Indian Tribe , Indian organization, or agency informs the court that it has discovered information indicating that the child is an Indian child; (3) The child who is the subject of the proceeding gives the c ourt reason to know he or she is an Indian child; (4) The court is informed that the domicile or residence of th e child, the child’s parent, or the child’s Indian custodian is on a reservation or in an Ala ska Native village; (5) The court is info rmed that the child is or has been a ward of a Tribal court; or (6) The court is informed tha t either parent or the child possesses an identification card indicati ng membership in an Indian Tribe

. 25 C.F.R. § 23.107(c) (emphasis ad ded). Thus, all that is requ ired for the Act’s notice provisions to apply is for a party or couns el to assert in good faith a be lief that the child “is an ‘Indian child.’” 25 C.F.R. § 23. 107(c)(1) & (2). In this case, neither Geouge nor her counsel ever made such anassertion. Geouge’s counsel candidly admitted during or al argument in this Court th at, at the time she filed the- 22 - motion to stay proceedings, she could not assert in good faith that L.T. is an Indian child. 7 She also confirmed that, after the motion to stay proceedings was d enied in the circuit court, no steps were taken by Geouge to develop a ny information that would allo w her to allege that L.T. is an Indian child. Given that the proceedings in the circuit court continued for months after the motion to stay proceedings was denied, the inability or unwilli ngness of Geouge to develop such a good faith belief is significant. Moreover, it stands in stark c ontrast with the actions taken b y the appellees. Faced with Geouge’s bald assertion that the Act “might apply” because of t he possibility that L.T. has Cherokee ancestry, appellees t ook it upon themselves to investi gate the claim. Appellees identified for the circuit court the three fede rally recognized Cherokee tribes and the factors that each of the tribes considers in de termining membership and elig ibility for membership. 8 During the proceedings below, appellees c ontacted the three federally recognized Cherokee tribes, provided information regarding L .T., Geouge, and Geouge’s fathe r (the alleged link to Native American ancestry), and inquired i f L.T. were eligible for memb ership in the tribes. Each tribe responded in the negative, indica ting that L.T. was not eligibl e for membership in the respective

7 Legally, there is a world of di fference in asserting that some thing “is” the case and that something is merely possible. G eouge acknowledged the differen ce during oral argument in this Court, noting that the motion be low sought additional time to i nvestigate whether the Act might apply and that she was not in aposition to assert that the Act did apply. We conclude that the language in 25 C.F.R. § 23.107(c) rec ognizes this distinction a nd requires that a party at least be willing to assert that the child is an “Indian child.” Requiring aparty to make such an allegati on does not require proof that the allegation is true; virtually e very unsuccessful suit will be premised upon allegations that a party asserted in good faith a s true that a court ultimately finds to be false. It simply requires that, at a minimum, a party ha ve a good faith belief that a child is an “Indian child” before the A ct’s notice requirements are trig gered.

8 The three federally recognized C herokee tribes are the Cheroke e Nation, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cher okee Indians in Oklahoma. See Indian Entities Recognized & E ligible to Receive Services, 82 Fed. Reg. 4915, 4916, & 4919.- 23 - tribes, and thus, was not an “Indianchild” for the purposes of the Act as it rel ates to the three federally recognized Cherokee tribes. 9 Given Geouge’s inability to allege that L.T. is an Indian child and the information provided by the federally recognized Cherokee tribes, the circu it court did not have “reason to know that an Indian child is involved” in the proceedings as co ntemplated by 25 U.S.C. § 1912(a). Accordingly, t he circuit court did not er r in concluding that the Act, including its notice provisions, di d “not apply to this case.” II. Circuit Court’s Analysis of and Conclusion Regarding the F actors Enumerated in Code § 63.2-1205 “[T]he interest of parents in t he care, custody, and control o f their children . . . is perhaps the oldest of the fundamental liberty interests recognized by” the United States Supreme Court. Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion) . Accordingly, although courts focus on the welfare of the ch ild in adoption proceedings, Malp ass v. Morgan, 213 Va. 393, 399, 192 S.E.2d 794, 799 (1972), Virginia courts long have recognize d that constitutional concerns require that, for a court “to gr ant a petition for adoption ove r a birth parent’s objection, there must be more than a mere findi ng that the adoption would promot e the child’s best interests.” Copeland v. Todd, 282 Va. 183, 197, 715 S.E.2d 11, 19 (2011) (c iting Malpass, 213 Va. at 398-99, 192 S.E.2d at 798-99). Generally, consent of the birt h parents is necessary for an ad option in Virginia. Code § 63.2-1202. Virginia’s statut ory scheme, however, allows for adoptions without the consent of a parent in certai n, specifically delineated circums tances. See, e.g., Code § 63.2-1202(E), (F), (G), & (H).

9 During oral argument in this C ourt, Geouge’s counsel conceded that the evidence established that L.T. was not a m ember or eligible for membersh ip in any of the three federally recognized Cherokee tribes, butargued that this fact did not e liminate the possibility that Geouge or L.T. were members or eligible for membership in some other f ederally recognized tribe.- 24 - Code § 63.2-1203(A) sets forth one suc h circumstance, providing that “[i]f, after consideration of the evidence, t he circuit court finds that the valid consent of any person . . . whose consent is required is withheld contrary to the best inte rests of the child as set forth in § 63.2-1205 . . . , the circuit court may grant the petition wi thout such consent.” In turn, Code § 63.2-1205 provides that [i]n determining whether the valid consent of any person whose consent is required is withhel d contrary to the best interests of the child . . . , the circuit court or juvenile and domestic relati ons district court, as the case ma y be, shall consider whether gran ting the petition pending before it w ould be in the best interest of the child. The circuit court or juve nile and domestic relations di strict court, as the case may be, shall c onsider all relevant factors, including the birth parent(s)’ e fforts to obtain or maintain le gal and physical custody of the child; whet her the birth parent(s) are currently willing and able to assu me full custody of the child; whether the birth parent(s)’ e fforts to assert parental rights were thwarted by other people; the bi rth parent(s)’ ability to care for the child; the age of the child; th e quality of any previous relati onship between the birth parent(s) a nd the child and between the birth parent(s) and any other minor ch ildren; the duration and suitab ility of the child’s present custodi al environment; and the effect of a change of physical custody on the child. Regarding the factors delin eated in Code § 63.2-1205, the Supre me Court has held that “[t]he eight factors in Code § 63.2-1205 . . . focus on both the parent and child and therefore compel a court to consider wheth er a parent’s unfitness would b e harmful to the child’s welfare.” Copeland, 282 Va. at 199, 715 S.E.2d a t 20. Accordingly, the S upreme Court concluded that an adoption that occurs over a pare nt’s objection pursuant to Code §§ 63.2-1203 and 63.2-1205 survives “constitutional due process scrutiny because [the stat utory requirements] encompass far more than mere consideration of the child’s best interests as d efined in cases involving a contest between natural parents. ” Id. at 200, 715 S.E.2d at 20. Recognizing the Supreme Court’ s decision in Copeland, Geouge d oes not challenge the constitutionality of t he statutory scheme, but rather, challeng es the conclusions drawn by the- 25 - circuit court regarding the f actors delineated in Code § 63.2-1 205. Specifically, in her second assignment of error, she contends that the circuit court erred in determining that she had withheld consent contrary to the best int erests of L.T. In her third as signment of error, she contends that the circuit court abused its di scretion in the manner in which it weighed certain evidence in reaching its conclusions. In both of these assignments of erro r, Geouge recognizes that she must establish that the circuit cour t abused its discretion in makin gs its findings, determining the weight to apply to each factor, and in reaching its conclusions

. The abuse of discretion standa rd does not permit this Court to substitute its judgment for that of a circuit court. As we have noted previously [a]n abuse of discretion occurs onl y when “reasonable jurists” could not disagree as to the pr oper decision. This principle necessarily implies that, for so me decisions, conscientious jur ists could reach different conclusi ons based on exactly the same fac ts — yet still remain entirely reas onable. This bell-shaped curve of reasonability governing our appell ate review rests on the vener able belief that the judge closest to the contest is the judge best able to discern where the equities lie. Hamad v. Hamad, 61 Va. App. 593, 607, 739 S.E.2d 232, 239 (2013 ) (internal citations omitted). Accordingly, so long as the circu it court properl y considered the statutory factors, we can reverse its conclusions only if they a re beyond the pale of reasonablen ess. Here, the circuit court heard the testimony of more than twent y witnesses over the course of a two-day trial. In addition to the testimony, more than th irty exhibits, ranging from medical records to home visit reports, were admitted and reviewed by th e circuit court. Despite the evidence, Geouge alleges that th e court erred in its conclusion s regarding her efforts to maintain legal custody of L.T., her relati onship with her other children , and whether her withholding of consent was detrimental to L.T.’s best interests. There was evidence in the reco rd to support the circuit court’ s factual findings and ultimate conclusions in this case. Regarding Geouge’s efforts to maintain custody of L.T., the- 26 - circuit court acknowledged t hat Geouge had tried to do so, but found that she had “sabotaged her own efforts by getting herself b ack into prison . . . and [t]ha t was her fault.” Similarly, although Geouge adduced evidence that she had been a stay-at-home mother for her other children and that, at times, her relationships with the other children were good, there was also evidence that her repeated violations of the law, substance abuse issues, occasio nally violent behavior, and repeated incarcerations had undermined those relationships. Because the re was evidence to support the circuit court’s finding that “the relationship with the other c hildren is unsatisfactory,” we cannot say that the circuit court erred in so finding. On appeal, Geouge does not just c hallenge the factual findings that the circuit court made regarding each of the statutory factors; she also challenges th e circuit court’s ultimate conclusion that she was withholding her consent to the adoption contrary t o L.T.’s best interests. In doing so, she argues that the circuit cour t failed to fully appreciate th e progress and efforts she made to be a better parent while incarcerated and what she characterizes as the appellees’ efforts to thwart her relationship with L.T. 10 This argument misunderstands our role on appeal. Although the circuit court could have made different factual findings regarding the statutory factors or weighed the si gnificance of the factors differently, nothing in the statutory scheme required i t to do so. The weighing of the statuto ry factors is, by necessity, fact-s pecific and highly discretionary. The discretion to m ake the relevant determinati ons is vested where the judicial branch comes into the closest co ntact with the child, the biolo gical parents, and the prospective

10 Although the circuit court found i n Geouge’s favor on the fact or related to the efforts of others to thwart her rela tionship with L.T. based on Traylor ’s actions, Geouge argues that the circuit court should have give n greater consideration to appell ees’ actions. Specifically, she argues that appellees thwarte d her efforts by continuing with t he adoption over her objection, refusing to allow L.T. to visit her in prison, not informing Ge ouge’s other children that L.T. was their sister, and in having L.T . baptized at their church.- 27 - adoptive parents–the circuit co urt. Even if we might have rend ered different factual findings or weighed the statutory factors di fferently, we will not second-g uess the circuit court’s exercise of judgment regarding the statutory factors. When, as here, the c ircuit court reviewed the statutory factors, based its findings on e vidence presented, and did not commit legal error, there is no basis for this Court to reverse its decision. III. Circuit Court’s Interp retation of Visitation Order In her fourth assignment of erro r, Geouge asserts that the cir cuit court erred in “concluding that [a] visitation o rder between [Geouge] and [Tra ylor] affected the actions of [a]ppellees.” Specifically, Geouge alleges that the circuit co urt misinterpreted a JDR court order regarding her petition for visita tion with L.T. while Geouge wa s incarcerated. 11 By refusing her petition, the JDR court declined t o order Traylor to take L.T. to the prison to visit Geouge. Geouge contends that the circuit court read the order not as de clining to order visitation, but rather, as “prohibit[ng] contact between [Geouge] and L.T.” Fatal to Geouge’s argument is t hat the circuit court did not i nterpret the JDR court order in such a fashion. When Geouge rai sed this argument in the mot ion to reconsider in the circuit court, the circuit court res ponded in its letter opinion that i t had not interpreted the JDR court order in this manner, noting t hat it “did not, i n fact, find th at a denial of visitation was equivalent to a prohibition of physical cont act.” (Internal quotation mar ks and citation omitted). Because Geouge has assigned error to a ruling that the circuit court did not make, the circuit court could not and did not err in the manner alleged b y Geouge in the assignment of error. Thus, we cannot take cognizance of the claimed error. Culpeper Reg’l Hosp. v. Jones, 64

11 Testimony established that, at least at one point, appellees b elieved the order prevented them from taking L.T. to visit Geou ge while she was incarcerate d. Because appellate review is limited to the actions of the cir cuit court, appellees’ misunde rstanding of the order ultimately is immaterial unless that misunde rstanding was adopted by the circ uit court.- 28 - Va. App. 207, 212 n.2, 767 S.E.2d 236, 239 n.2 (2015) (rejectin g an appellate argument because the fact finder did not take the a ction that appellant alleged constituted error); cf. Rule 5A:12(c)(1)(ii). 12 IV. Denial of Continuance Request Geouge argues that the circuit court erred in denying her moti on to continue the December 2016 trial until shortly after her scheduled release f rom prison in January 2017. Specifically, she argues that “[a ] continuance out to a date ce rtain [in] February [2017] would have changed the color of the case” by allowing her to present herself as a ready parent whose efforts at custody would not ha ve been hampered by being incarc erated at the time a decision was being made. The decision of whether to grant a continuance is committed to the discretion of the circuit court. Haugen v. Shena ndoah Valley Dep’t of Soc. Servs ., 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007). We will reverse a ci rcuit court’s “ruling on a motion for a continuance . . . only upon a showing of abuse of discretion and resulting prejudice to the movant.” Id. Geouge argues she was prejudiced by the ruling because, at the end of the litigation, “[s]he lost contact with her only daughter.” This mis understands the prejudice inq uiry. Although no one could dispute that G eouge ultimately suffered a significant loss, her relationship with L.T., as a resu lt of the litigation, that doe s not mean she was prejudiced by the denial of her request for a con tinuance. To establish the nece ssary prejudice, Geouge must do more than note she lost the case; she must establish that the d ecision to deny her a continuance

12 Although Rule 5A:12 applies in cases that come before us by wa y of the petition process, appellants in appeals of right would be well-served by observing its requirements in drafting assignments of error. S pecifically, as it relates to this case, Rule 5A :12(c)(1)(ii)’s admonition that “[a]n assignmen t of error which does not addres s the findings or rulings in the trial court or other tribunal from which an appeal is taken . . . is not sufficient.”- 29 - prevented her from presenting he r case or otherwise caused her to lose the case. This she cannot do. Geouge was able to participate in circuit court proceedings. Her interests were ably represented by her current couns el. Geouge appeared, testified , had witnesses called on her behalf, filed numerous motions, a nd made substantial arguments as to the proper resolution of the case. The circuit court’s ul timate ruling against her was the result of its determination of the facts of the case and not the re sult of the denial of her conti nuance request. We acknowledge that Geouge’s history of criminal activity, s ubstance abuse, and subsequent incarcerations was pa rt of the circuit court’s decis ion-making process. However, those factors existed as a resu lt of Geouge’s behavior and woul d have existed whether the trial took place a month before her re lease from prison or in the day s or months immediately after her release. They were not caused or exacerbated by the circuit co urt’s denial of the requested continuance. Geouge responds by noting that, i n issuing its ruling from the bench in December 2016, the circuit court commented tha t whether Geouge would be able t o overcome her issues with criminality, substance abuse, a nd incarceration to be able to b e a good parent to L.T. was a matter of “conjecture.” Accord ing to Geouge, the circuit court ’s recognition regarding the uncertainty of Geouge’s future re quired either granting the con tinuance or her subs equently filed motion to reconsider so that th e circuit court could know how s he was adapting to her post-release circumstances. Even if the circuit court had de layed the proceeding to February or March of 2017, its ultimate decision regarding Ge ouge still would have been subjec t to some level of conjecture because the future is uncertain. As we have noted, “[n]o one c an divine with any assurance the future course of human events. Nev ertheless, past actions and relationships over a meaningful- 30 - period serve as good indicators of what the future may be expec ted to hold.” Frye v. Spotte, 4 Va. App. 530, 536, 359 S.E.2d 315, 319 (1987). Thus, although a proceeding in February or March might have allowed Geouge to put on evidence that she had been able to avoid reoffending for a week or a mont h, had obtained appropriate liv ing quarters, etc., the circuit court still would have been r equired to engage i n conjecture about wh at the future held for Geouge regarding her ability to stay out of prison and parent L.T. giv en her years-long history of criminal and substance abuse issues. Thus, conjecture was necessitated by the circumstances and Geouge’s past conduct and not because the circuit court denied the requested continuance. Accordingly, given the failure of Geouge to demonstrate the ne cessary prejudice, we cannot say the circuit court erre d in denying the requested con tinuance. 13 V. Lack of Notice Regard ing Petition for Adoption In her final assignment of error , Geouge challenges the final order of adoption on the grounds that she was not served w ith the petition for adoption or given notice that the petition had been filed until after the or der granting the petition for adoption had been entered. Specifically, she argues that , pursuant to Code § 63.2-1203(A)( 1), the adoption could occur over her objection only if it occurred a t least “[f]ifteen days afte r personal service of notice of petition on the party or parties whose cons ent is require d by this secti on.” Appellees argue that the notice

13 Alternatively, Geouge has not est ablished that the denial of t he continuance constituted an abuse of discretion. The lit igation began with the petition filed in the JDR court in November 2015, and the parties had litigate d fully in that forum the que stion of whether Geouge was withholding her consen t contrary to L.T.’s best interests. Thu s, although Geouge was entitled to a trial de novo in the circuit court, the li tigation had been ongoing for over a year at the time of the December 2016 trial in the c ircuit court. We long have rec ognized that delays in resolving child welfare cases can be detrimental to the children involved . Cf. Kaywood v. Halifax Cty. Dep’t of Soc. Servs., 10 Va. App . 535, 540, 394 S.E.2d 492, 495 (1990). Given the length of time the case had been ongoing, it was not beyond the pale for the c ircuit court to believe that even a short continuance had the potential to be harmful to the child while providing little in the way of benefit to the parties or the court. Thus, although the circui t court certainly had the authority to grant the requested continuance, we cannot say that, considerin g all of the facts and circumstances, its refusal to do so was unreasonable.- 31 - Geouge received regarding the pro ceedings in which the JDR cour t and the circuit court determined that she was withhol ding her consent to the adoptioncontrary to L.T.’s best interests sufficed and that additional notice was not required because, o nce the circuit court made its findings regarding consent, the adoption was no longer proceedi ng under Code § 63.2-1203, but rather, was proceeding under Code § 63.2-1233. 14 “[A]s an appellate court, we s eek the best and narrowest groun d available for our decision.” Harvey v. Commonwealth, 65 Va. App. 280, 285 n.2, 7 77 S.E.2d 231, 234 n.2 (2015) (internal quotation marks and citations omitted). It is often the case that the best and narrowest ground for resolving a case involv es not the merits of the unde rlying issue, but rather, whether the alleged error had any effect on the outcome. See Commonwea lth v. White, 293 Va. 411, 419, 799 S.E.2d 494, 498 (2017) (“In this case, the best and na rrowest ground is our conclusion that the alleged trial court error, if err or at all, was harmle ss as a matter of law.”). “Under the doctrine of harmless error, we will affirm the circuit court’s judgment when we can conclude that the error at issue could not have affected the court’s result.” Northam v. Va. State Bar, 285 Va. 429, 445, 737 S.E.2d 905, 913-14 (2013) (quot ing Forbes v. Rapp , 269 Va. 374, 382, 611 S.E.2d 592, 597 (2005)). Accordingly, we must affirm the decision of the circuit court if we conclude

14 Appellees also argue that the no tice argument is procedurally defaulted because Geouge did not raise the objection in the circ uit court within twenty-one days of the entry of the order of adoption, and thus, the argument is barred by Rule 5A: 18. At oral argument in this Court, appellees acknowledged a log ical flaw in the argument go ing so far as to characterize their own argument as “circul ar.” Appellees recognize that Geo uge raised her notice objection as soon as she became aware of the proceeding for which they fa iled to provide her notice. Given the circumstances and the possibility that a failure of n otice might subject the order to challenge, we conclude that th e notice issue is properly before us.- 32 - that any error in failing to provide additional notice would no t have changed the circuit court’s ultimate decision. 15 Here, the circuit court conducted a two-day trial to determine whether Geouge was withholding consent to the adopti on contrary to L.T.’s best int erests. The parties fully litigated these issues and clearly underst ood that, if the circuit court granted the appellees’ petition regarding consent, adoption was t he next step. The March 10, 2 017 order contains, as part of the caption, the notation: “I n Re: Adoption of L.S.T.” Geouge participated in the tr ial, thoroughly defended her posit ion throughout, and expressly recognized in her moti on seeking reconsideration of the circuit court’ s ruling that the proceeding dealt with her “right to raise her daughter.” Moreo ver, once Geouge became aware of the order of adoption, she in terposed objections. Other than the objection regarding notice, her stated objections simply re iterated the arguments and objec tions she made during and regarding the December 2016 trial. Because she raised nothing new in her objections, we can say w ith certainty that the failure to give additional notice in this case did not affect the outcome. Geouge conceded as much at oral argument in this Court, characterizing the notice argument and any hearing that additional notice might have occasioned as purely “ pro forma ” because it would have been nothing but a rehash of the same ar guments before “the same cir cuit court judge.” Thus, even Geouge concedes that the outcome would not have changed if she had received additional notice.

15 “The harmless-error concept is no mere prudential, judge-made doctrine of appellate review. Harmless error is a leg islative mandate, which has bee n part of our statutory law since the early 1900s, and limits the adjudicatory power of Virginia appellate courts .” White, 293 Va. at 419, 799 S.E.2d at 494 (emphasis a dded); see also Code § 8.0 1-678.- 33 - Accordingly, it is clear that any failure to provide additiona l notice does not provide a basis for reversing the de cision of the circuit court. 16
CONCLUSION For the reasons stated above, we conclude that the circuit court did not commit reversible error as asserted by Geouge. Acco rdingly, the judgments of the circuit court are affirmed. Affirmed.

16 As noted above, the terminati on of parental rights involves a liberty interest that is protected by the Due Process Clau se of the United States Consti tution. See Wright v. Alexandria Div. of Soc. Servs., 16 Va. App. 821, 829, 433 S.E.2d 500, 505 (1993). Generally, due process requires that “a party ‘has r easonable notice and reasonable op portunity to be heard and to present his claim or defense , due regard being h ad to the natur e of the proceeding and the character of the rights whic h may be affected by it.’” Eddine v. Eddine, 12 Va. App. 760, 763, 406 S.E.2d 914, 916 (1991) (quoting Dohany v. Rogers, 281 U.S. 362, 369 (1930)). Nevertheless, because Geouge does not raise a constitutional ch allenge regarding the lack of notice, but rather, only raises a question of whether she recei ved the notice allegedly required by statute, we do not address the constitutional issue here.